Anti-Secessionist
Argument #1: To secede would cause damage to the other states given their
“detrimental reliance” on the other states’ joining
the union.

In Vieira’s
first point, he refers to the secessionist’ position that the US
Constitution is a “contract,” thereby giving the state a right
to break the contract upon a breach. However, he qualifies this position
to say, a contract is no contract where the parties to it can leave it
at any time without cause. In other words, where there is no binding effect
upon the parties to the agreement, then the agreement has no binding effect
other than a “gentlemen’s agreement.” This renders the
“agreement” to be something other than a contract and implicitly
is some sort of legal absurdity.

From
a natural law definition, Vieira describes what enlightenment and natural
philosophers called an “imperfect obligation.” “An imperfect
mutual obligation arises…when a person, while binding himself to
furnish something to another, does not demand that this latter be put
in his turn under obligation to him in the same way. This takes place
principally in the case of gratuitous promises.” Samuel Pufendorf,
Two Books on the Elements of Universal Jurisprudence, (Indianapolis, IN,
Liberty Fund, 2009), 116.

To avoid
the conclusion that the US Constitution is simply a non-binding agreement
upon the States, Vieira points us to “what lawyers call” detrimental
reliance, offering a sort of alternative to the “contract/compact”
theory of secessionists. This detrimental reliance theory is a principle
of contract and natural law, as expounded by natural law jurists, and
is in fact a legal cause of action used today. This principle says, where
I have made a promise and as a result of that promise, you have changed
your position, such that if I break my promise, you will be harmed, then
an implied contract has been formed and I will be estopped from breaking
my promise or alternatively will be held liable for the damages I cause
you as a result of breaking my promise. Put differently, the ratifying
states of the union have relied upon the other states’ ratifying
the constitution and that as such, those states have formed an implied
contract to remain in that same union, except by the terms of the contract,
as if there is one.

The
detrimental reliance theory, however, is not at all in order as it relates
to the independent actions of independent states. Is the United States
perpetually bound by a treaty to a foreign country forever where that
foreign country has materially breached the agreement? No one in their
right mind would even suggest it. Not one state expressly conditioned
their ratification of the constitution upon the guarantee that all of
the ratifying states (present and future) will be bound to that union,
even though all of the states knew of its possibility, given the fact
that they just seceded from Great Britain.

They
joined the union based upon the moral force of commonality, as
James Madison confirms in this maxim:

“The
more intimate the nature of such a union may be, the greater interest
have the members in the political institutions of each other…Governments
of dissimilar principles and forms have been found less adapted to a federal
coalition of any sort, than those of a kindred nature.” FP
43 (emphasis added).

What
happens to the union where the principles and forms are now less adapted
to a federal coalition? What happens to self-government when those elements
are gone?

And
as a side, how can it be that the colonies had a right to secede from
Great Britain which was a bond connected by a monarchy with no form of
voluntary union present, but there can be no right to secede in a federal
compact formed voluntarily by sovereign states? If the answer is, well,
ALL of the colonies seceded, this does not answer the question, because
each colony had the individual decision to make for itself whether or
not it would secede, and they maintained that independence from each other
as evidence by their Declaration to the world of being free and independent
states, having all the powers that independent nations have. If there
is anything that is clear from the Declaration of Independence period,
it is that the people wanted to maintain a federal form of government,
not a national one, just as Justice Joseph Story reflects: “The
Declaration of Independence…was not the act of the whole American
people.” Joseph Story, Nature of the Constitution – Whether
A Compact, Book 3, Chapter 3, Sec. 330.

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However,
even if it were presumed that the detrimental reliance theory is applicable
here, the natural and contract law principles of course work both ways:
where a state has entered the union with the promise or assurance that
the fundamental laws, principles and purposes of the constitution be followed,
then the harmed state has a right to seek remedy for that breach and to
mitigate its damages as far as possible for the preservation of that state
where those guarantees are not followed.

State
Ratifications Reveal “No Detriment”

Using
the detrimental reliance argument to oppose secession ignores what the
states believed to be true when entering the union; that is, they believed
they had a right to withdraw themselves from the union at any time based
upon the principles of a federal compact formation. Consider the state
of New York’s ratification documents:

“We, the delegates of the people of the State of New York…do
declare and make known—[1] That all power is originally vested in,
and consequently derived from the people, and that Government is instituted
by them from their common interest, protection, and security. [2] That
enjoyment of life, liberty and the pursuit of happiness, are essential
rights, which every Government ought to respect and preserve.” [3]
That the powers of Government may be re-assumed by the people, whensoever
it shall become necessary to their happiness; that every power, jurisdiction,
and right, which is not be the said Constitution clearly delegated to
the Congress of the United States, or to the departments of the Government
thereof, remains to the people of the several States, or to their
respective Governments, to whom they may have granted the same.”
Stephens, A Constitutional View of the Late War Between the States, 270-271
(emphasis added).

Here,
New York put the world on notice that the people and their agents (state
government) retain the right to withdraw themselves from political associations
where such unions become destructive to the ends of government: “enjoyment
of life, liberty and the pursuit of happiness.” Why? Because this
conforms to the principles of state sovereignty, self-government and the
consent of the governed. It cannot be argued that a state breaches a contract
by removing itself from the relationship when the states understood and
consented to this “right to withdraw” term of the contract
before hand.

Are
we, their posterity, to ignore the legally binding effect of their declarative
statements regarding ratification? And if we can so ignore, then why cannot
we likewise ignore the supposition that the states cannot secede because
our “forefathers did not want us to” or because the federal
government does not want us to today? What is good for the goose is good
for the gander. You cannot attempt to justify a position based upon the
constitution when the documents ratifying the constitution show the opposite
political intent and effect. After all, the constitution was not created
and does not currently exist in a vacuum. One cannot look at the words
today and apply his own subjective meaning to them. This contradicts every
rule of sound construction. The constitution has certain and fixed meanings
based upon the principles, philosophies, circumstances and understandings
of 1787, and those meanings can most certainly be determined by the ratifying
documents of the states.

If detrimental
reliance is the pad-lock holding the states together, then it most certainly
is the key to unlock the states’ part in the union where the system
of the union itself causes detriment to the states, such that a state’s
very survival and freedom’s perpetuation is best accomplished through
secession from the existing union. As soon as this theory is admitted,
contract laws necessarily appear between the states and with the created
federal government (the agent of the people of the states); and one must
necessarily conclude that each party has a right to enforce the contract
as it relates to the breach thereof, especially when the assenting document
expressly declares that they have a right to withdraw from the union.

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This
is why it is so important for anti-secessionists to conclude that a contract/compact
does not exist between the states because to do so admits the power of
the parties to determine the breach of the terms and to pursue remedies
consequentially. To that end, Vieira does not admit that an implied contract
exists, nor does he admit that an expressed contract exists. Why is it
so important that the union not be based upon a compact? Because the rules
and maxims relative to a union being formed by a federal compact necessarily
confirm the states’ right to remove themselves from that union.
This will bring us to our next article. For part one click below.

Timothy
Baldwin is an attorney from Pensacola, FL, who received his bachelor of
arts degree at the University of West Florida and who graduated from Cumberland
School of Law at Samford University in Birmingham, AL. After having received
his Juris Doctorate degree from Cumberland School of Law, Baldwin became
a Felony Prosecutor in the 1st District of Florida. In 2006, he started
his own law practice, where he created specialized legal services entirely
for property management companies.

Like his father,
Chuck Baldwin, Timothy Baldwin is an astute writer of cutting-edge political
articles, which he posts on his website, www.libertydefenseleague.com.
Baldwin is also the author of the soon-to-be-released book entitled, Freedom
For A Change, in which Baldwin expounds the fundamental principles
of freedom believed by America’s forefathers and gives inspiring
and intelligent application of those principles to our current political
and cultural standing.

Baldwin is involved
in important state sovereignty movement issues, including being co-counsel
in the federal litigation in Montana involving the Firearms Freedom Act,
the likes of which is undoubtedly a pivotal and essential ingredient to
restoring freedom and federalism in the states of America. Baldwin is
also a member of freedom organizations, such as The Oath-Keepers, and
believes that the times require all freedom-loving Americans to educate,
invigorate and activate the principles of freedom within the States of
America for ourselves and our posterity.

Are we, their posterity,
to ignore the legally binding effect of their declarative statements regarding
ratification? And if we can so ignore, then why cannot we likewise ignore
the supposition that the states cannot secede because our “forefathers
did not want us to” or because the federal government does not want
us to today?